Mark ThomsonMark Thomson, editor of Inforrm and partner at Atkins and Thomson, argues that Leveson should have included a statutory right of reply in his recomendations.

In his Report Lord Justice Leveson considered and rejected a proposal that there should be a statutory right of reply or correction. This was a proposal made by the Media Regulation Roundtable in its evidence to the Inquiry. His reasons for rejecting this proposal are unconvincing. An important opportunity has been missed. Such a right would provide a valuable additional incentive to the membership of a “Leveson compliant” self-regulatory body.

In addition, Lord Justice Leveson fails to engage with the point – which he himself recognises – that Article 10 and other international obligations may, in any event, require the UK government to provide a statutory right of reply.

Leveson Report on Right of Reply

These issues are dealt with in Volume 4 of the Report. Lord Justice Leveson summarises the Media Regulation Roundtable proposal – which was for a statutory right of reply to be available only in respect of publishers who were not members of a voluntary self-regulatory body. He comments

“The effectiveness of the right to reply or correction as an incentive to membership of the self-regulatory body would depend on the relationship between the statutory right and the equivalent provisions in the self-regulatory code. If the statutory right is less onerous than the code provisions then it is unlikely to offer much of an incentive. If, on the other hand, the statutory provision were to be stronger than, or the same as, the code provision there might be some question as to the benefits to the public of the self-regulatory system. It is not entirely straightforward to see why publishers should effectively be able to opt out of a statutory obligation by joining a trade body that does not give equivalent public protection” (Part K, Chap 4, para 5.36, p.1667).

This misses the point. The suggestion is not that the self-regulatory body would give less protection but that it would give the same protection to the public without involving the courts. A statutory right of reply enforced by the courts would expose news publishers who did not join the self-regulator to legal costs and would place the “reply and correction procedure” under the control of a judge rather than a self-regulatory body.

The alternative would be for a news publisher to join the self-regulatory body which would deal with replies and corrections without legal costs and would have industry participation. The intention would be that both processes would be equally effective but that one would be more costly and would not be “self-regulation”.

It seems obvious that a news publisher would prefer to have a “reply and correction” system operated by a self-regulator rather than one operated by the courts as in countries such as Austria, France, Germany, Hungary, Italy, Netherlands, Norway, Spain and Switzerland.

The second point which Lord Justice Leveson makes is that

The critical features of a right of reply are its immediacy and its ready availability. It is difficult to see how providing a mechanism through the courts will achieve either of these objectives. (Part K, Chap 4, para 5.37, p.1667).

This is a question of practicality, not principle. The Roundtable proposal was for a procedure, modelled on the provision in the Finland 2004 “Act on the Exercise of Freedom of Expression in the Mass Media“ for applications for the publication of a reply and correction to be made within a very tight timescale – so that the courts can adjudicate in a matter of weeks. This is as quick as a regulator – and if suitable provisions were made as to the availability of CFAs for these applications, it would be available to all sections of the public.

The threat of Court actions by individuals in respect of inaccurate and misleading statements about them in the press – and possible adverse costs orders – would, I suggest, be a very powerful incentive indeed to news publisher to join a self-regulatory body.

Article 10 Right of Reply

The other point which Lord Justice Leveson notes in his report – but does not develop – that there may be an Article 10 requirement to provide for a statutory right of reply. He notes, in a footnote that the Court of Human Rights

“has arguably conceded that a positive obligation arises for the State to protect the right to freedom of expression by ensuring a reasonable opportunity to exercise a right of reply and an opportunity to contest a newspaper’s refusal suing for a right to reply in courts (see Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX)” n.16, App 4, p.1846.

There is, in fact, a strong argument in favour of an Article 10 “right of reply”. The matter has a considerable history with a substantial volume of material from the Council of Europe supporting the argument in favour of such a right of reply.

In 1974 the Committee of Ministers of the Council of Europe adopted a Resolution on the Right of Reply (Res (74) 26). It was recommended that “as a minimum,” that

“In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such corrections being given, as far as possible, the same prominence as the original publication”.

An Appendix to this Resolution sets out “Minimum Rules Regarding the Right of Reply” which include the following:

1. Any natural and legal person, as well as other bodies, irrespective of nationality or residence, mentioned in a newspaper, a periodical, a radio or television broadcast, or in any other medium of a periodical nature, regarding whom or which facts have been made accessible to the public which he claims to be inaccurate, may exercise the right of reply in order to correct the facts concerning that person or body.

2. At the request of the person concerned, the medium in question shall be obliged to make public the reply which the person concerned has sent in.

3. By way of exception the national law may provide that the publication of the reply may be refused by the medium in the following cases:

i. if the request for publication of the reply is not addressed to the medium within a reasonably short time;

ii. if the length of the reply exceeds what is necessary to correct the information containing the facts claimed to be inaccurate;

iii. if the reply is not limited to a correction of the facts challenged;

iv if it constitutes a punishable offence;

v. if it is considered contrary to the legally protected interests of a third party;

vi. if the individual concerned cannot show the existence of a legitimate interest.

4. Publication of the reply must be without undue delay and must be given, as far as possible, the same prominence as was given to the information containing the facts claimed to be inaccurate.

The rules go on to provide for the establishment of a tribunal to adjudicate in in the event of disputes and having power to order the publication of a reply.

The point has been taken up on a number of subsequent occasions by other Council of Europe bodies. For example, in Recommendation 1215 (1993) on the “Ethics of Journalism”, the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers

“ask governments of member states to see that legislation guarantees effectively the organisation of the public media in such a way as to ensure neutrality of information, plurality of opinions and gender balance, as well as a comparable right of reply to any individual citizen who has been the subject of an allegation”

This has not only been something considered by the Council of Europe. Article 23 of the European Council’s “Television without Frontiers Directive” (89/552/EEC) recommended that

A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a Member State”

In 2004, the Council of the European Union put forward a proposal for a recommendation of the European Parliament and the Council on the right of reply. The Department of Culture Media and Sport conducted a consultation, inter alia, on the question of a legally enforceable right of reply. In an October 2004 submission the Mediawise trust strongly supported the recommendation noting that

“An automatic ‘right of reply’ is not a recipe for removing control from the editor; it is a very practical way of demonstrating a commitment to accuracy. Those who argue that newspapers would then be ‘full of corrections’ ignore the fact that if that were to be the case it would only be as a result of them having first been unfair or ‘full of errors’” [para 2.05].

In December 2006 European Parliament and of the Council of the European Union adopted the recommendation (see Recommendation 2006/952/EC). This included a recommendation that the right of reply or equivalent remedies should apply to on-line media. This recommendation is not legally binding on Member States.

Some of the background can be found in an article entitled “Right of Reply: A Comparative Approach” by Andras Koltay, who also discusses the position in the United States and Canada.

As Lord Justice Leveson notes, the question of the relationship between the right of reply and Article 10 was considered by the Court of Human Rights in the case of Melnychuk v Ukraine (Decision of 5 July 2005). The applicant had sought the publication of a reply to a critical book review in a local newspaper. Domestic legislation provided for a right of reply however the newspaper had refused to published the reply on the grounds that it was obscene and abusive. The Court of Human Rights note that

“as a general principle, newspapers and other privately owned media must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals. However, there may be exceptional circumstances in which a newspaper may legitimately be required to publish, for example, a retraction, an apology or a judgment in a defamation case. Consequently, there will be situations when a positive obligation may arise for the State to ensure an individual’s freedom of expression in such media … The Court considers that in the present case a positive obligation arose for the State to protect the applicant’s right to freedom of expression by ensuring, firstly, that he had a reasonable opportunity to exercise his right of reply by submitting a response to the newspaper for publication and, secondly, that he had an opportunity to contest the newspaper’s refusal.”

However, there was no breach of Article 10 because, in the circumstances of the case, a fair balance had been struck between the competing interests. Nevertheless, the case recognises the existence of an Article 10 positive obligation to provide a right to reply.

This was confirmed in the subsequent case of Vitrenko v Ukraine (Decision of 15 December 2008) in which it was said that

“the Court bears in mind the positive obligation on the State to ensure that persons subjected to defamation have a reasonable opportunity to exercise their right to reply by submitting a response to defamatory information in the same manner as it was disseminated.”

As a result, it is arguable that Article 10 requires the provision of a “right of reply” in the media. The existence of such a positive obligation would be consistent with the policy views expressed by the Committee of Ministers and the Parliamentary Assembly.

This case law makes it even more surprising that Lord Justice Leveson was so quick to dismiss a statutory right of reply in his Report.

Conclusion

In short, there is a strong argument that Lord Justice Leveson was wrong to reject the enactment of a statutory right of reply as an incentive to publishers to join a voluntary self-regulatory body. The press have consistently opposed the enactment of a statutory right to reply and, if it were to be enacted, would undoubtedly prefer to have these issues dealt with by a regulator rather than the courts. In any event, there is a strong argument that the United Kingdom has a positive obligation to make such a right available to its citizens in an effective form. If substantial newspaper groups remained outside a “Leveson compliant regulator” then they would be subject to a statutory requirement to provide a right of reply.

Mark Thomson’s original post appeared on Inforrm on 27 January 2013. Another view on right of reply appeared in an earlier guest post on the Slovenian experience.